The GOP's Right: The Dems Have A Gitmo Problem

Admittedly, the Republican Party's latest effort to scare voters into distrusting Democrats on national security isn't very subtle. (Oogedy-boogedy....Democrats will force terrorists to move into that house down the street, etc.). But the issue these videos (soon to be advertisements from the National Republican Congressional Committee) deal with is one that Democrats so far are hesitating to engage on -- at least since the dawn of the new administration. When Dick Cheney appears on CBS's Face the Nation this week, I hope that moderator Bob Scheiffer asks him about a House bill entitled the "Keep Terrorists out of America Act," which would hamstring the executive and judicial branches's ability to determine where un-triable detainees and convicted terrorists -- not to mention the innocent -- would land after Guantanamo Bay closes its prison. Cheney ought to oppose the bill; he's a motive force behind the argument that the executive branch has the inherent authority to capture and dispose of these prisoners in almost any way it wants. To encapsulate a very complex argument, most Congressional Democrats believe that while the president's authority to capture and detain combatants is constitutionally guaranteed, the executive's authority over how those prisoners are detained and how their cases are disposed of falls within the purview of the legislative branch.

The Obama administration's principal deputy solicitor general is Neal Kaytal, who was one of the first to argue, as he has put it, that "our Constitution precluded the President from unilaterally establishing military tribunals and that the structural provisions employed by our

Founders required these tribunals to be set up by Congress." Thanks in part to Kaytal's arguments, the Supreme Court agreed that the Gitmo detainees had the right to challenge the causes of their detention in tribunals set up by Congress. (Kaytal and others believe that all of them have to be "Article III" reviews -- Article III of the Constitutional deals with the judicial branch -- but the courts aren't there yet, and neither is Kaytal's new boss.)

Barring an exceptional intervention by the Courts, President Obama's three ongoing prisoner status review commissions will probably conclude that a substantial number of Gitmo prisoners ought to be released. The Attorney General, Eric Holder, spent a week in April trying to persuade European governments to accept some of them. Others might be rendered to detention camps in Saudi Arabia, or maybe Yemen. And others, particularly those for whom there is little evidence that they were complicit in anything beyond being at the wrong place at the wrong time, may well be released into the United States, perhaps under some form of supervised custody, perhaps not. Others, if convicted in regular or new military courts, will be sentenced to life in prison. Given that the government no longer has extra-territorial prisons (with the exception of its Afghanistan war detention facility at Bagram and some places in Iraq) - these bad guys will spend the rest of their days in supermax facilities like Fort Leavenworth, in Kansas.

A lot could go wrong: the Supreme Court could find a problem with the new administration tribunals. So could Congress, which could well assert its disposition authority and get into a fight with President Obama about the creation of national security courts. There are some Democrats who are hoping for this scenario, and plenty of others, like Sen. Barbara Mikulski, who are consistently and constantly pressing the administration for more information. Maybe the American are, as Richard Clarke says in response to the GOP videos today, "smarter" than Republicans given them credit for, but Democrats will one day have to acknowledge that they've got a hand in deciding where the detainees end up.

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Marc Ambinder is a contributing editor at TheAtlantic. He is also a senior contributor at Defense One, a contributing editor at GQ, and a regular contributor at The Week.